Tuesday, May 24, 2005

Senate Compromise - Future Nominees

Under the compromise, future nominees will receive a vote (that is, no filibuster) except "under extraordinary circumstances". The key term "extraordinary circumstances" is not defined. The agreement only says that "each signatory must use his or her own discretion and judgment in determining whether such circumstances exist".

The failure to define the key term makes this compromise an agreement to agree in the future. The reservation of "discretion and judgment" by each signatory reinforces that conclusion. As the President makes nominations, each of the 14 senators will make an individual determination of whether there are "extraordinary circumstances". There are no parmameters, boundaries, or factors to guide each senator in making the determination.

If any part of the agreement will cause the compromise to blow up, this is it. If 2 Democrats decide there are "extraordinary circumstances", a filibuster will ensue. What will the Republican signatories do? If they sit on their hands and do nothing, they will have received very little in return for their signatures on this compromise. If they move to cut off debate, we will be back to where we are now, but with recriminations flying over who is to blame.

This section of the agreement shows how eager the signatories were to reach a compromise and to avoid a vote on the so-called nuclear option.

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